"If art is to nourish the roots of our culture, society must set the
artist free to follow his vision wherever it takes him." -- John F.
Kennedy

Today, across the cultural spectrum, artistic freedom is under assault.
Free expression in popular music, photography, painting, cinema and other
arts is threatened by pressure from lawmakers, prosecutors and
self-appointed guardians of morality and taste. Succumbing to that
pressure, more and more music stores, museums, schools, theaters,
television stations, bookstores and video shops are restricting the
display or availability of images and words deemed to be offensive to one
group of citizens or another.

The roots of contemporary efforts to curb free expression in the arts
reach back to the early 1980s, when a backlash arose against the cultural
freedom of previous decades. Religious fundamentalists and others, with
overt support from the administration of President Ronald Reagan, began to
advocate censorship of books, films and television in an effort to enforce
cultural conformism. Today, we are reaping the harvest of that backlash
as rap singers and museum directors are prosecuted for
"obscenity," performance artists are denied government grants
and Congress passes new censorship laws.

Artistic expression has come under attack in other periods of our
country's history. In 1873, Congress passed a law that prohibited the
mailing, shipping or importation of "obscene" and
"immoral" matter. The law was used to ban the works of James
Joyce, D.H. Lawrence, Voltaire and other great authors, as well as printed
information about sexuality and contraception. The American Civil
Liberties Union, founded in 1920, first confronted arts censorship in 1926
when the city of Boston banned 65 books, including Theodore Dreiser's
An American Tragedy, Sinclair Lewis' Elmer Gantry and Ernest
Hemingway's The Sun Also Rises. The ACLU countered the city's
action, which popularized the phrase, "banned in Boston," with a
campaign to repeal Massachusetts' Blasphemy Act and end the censorship of
plays and books.

Defending artistic expression, which is one of our most basic freedoms,
remains among the ACLU's highest priorities. Here are the ACLU's answers
to questions often asked by the public about artistic freedom.

Q: What protects the work of artists from government censorship?

A Artistic creations, whatever their medium or message, and even if
their content is unpopular and of poor quality, are protected by the First
and Fourteenth Amendments to the United States Constitution. The First
Amendment declares that "Congress shall make no law...abridging the
freedom of speech, or of the press," and the Fourteenth Amendment
extends that prohibition to state and local governments. The government
is forbidden to suppress the creation or distribution of any music, play,
painting, sculpture, photograph, film, or even comic book. Some legal
scholars have argued that the First Amendment is only applicable to
written or spoken political expression, but the U.S. Supreme Court
has long rejected that interpretation. In a 1948 decision, the Court
stated: "We reject the suggestion that the constitutional protection
for free speech applies only to the exposition of ideas. The line between
the informing and the entertaining is too elusive...."

Q: When and how did the threat to artistic freedom emerge in this
country?

A: Supreme Court Justice William O. Douglas once observed that the
First Amendment was "the product of a robust, not a prudish,
age." For example, many of the Constitution's framers probably read
and enjoyed John Cleland's 1748 best-seller, Memoirs of a Woman of
Pleasure, better known as Fanny Hill. However, the Victorian
Age brought extremely rigid and repressive moral standards into vogue in
the English-speaking world, prompting both the British and American
governments to begin applying sanctions to sexually explicit art and
literature.

In 1821, 30 years after adoption of the Bill of Rights, Fanny
Hill was banned in Massachusetts. In 1842, Congress amended the
Customs law to prohibit the "importation of all indecent and obscene
prints, paintings, lithographs, engravings and transparencies." In
1868, a ruling by England's highest court established a "bad
tendency" test that was appropriated and used by U.S. state and
federal courts until the 1930s: The government could ban any material if
"the tendency of the matter charged as obscenity is to deprave and
corrupt those whose minds are open to such immoral influences and into
whose hands a publication of this sort may fall." In 1873, Congress
passed the Comstock Law, named for Anthony Comstock, who led the Society
for the Suppression of Vice. In its first year of existence, that law,
which punished first offenders with a $5,000 fine and five years
imprisonment, authorized the destruction of 194,000 "questionable
pictures" and 134,000 pounds of books "of improper
character."

By 1900, criminal obscenity statutes were on the books in 30 states,
and censorship of "immoral and indecent" works had become
entrenched.

Q: How has the Supreme Court dealt with sexually explicit
expression?

A: In 1957, the Supreme Court announced, in the case of Roth v.
United States, that obscenity is not constitutionally protected
because it is "utterly without redeeming social value." In the
same decision, the Court replaced the "bad tendency" test with a
narrower one that declared a work of art obscene if, "to the average
person, applying contemporary community standards, the dominant theme
taken as a whole appeals to the prurient interest." For the next 16
years, the Court refined this definition while reversing many state
obscenity convictions.

In 1973, a Court grown weary of reviewing and reversing tried to
formulate clearer guidelines for evaluating sexually explicit material.
In the case of Miller v. California, a 5-4 majority declared that a
work is obscene if, first, "'the average person, applying
contemporary community standards,' would find that the work, taken as a
whole, appeals to the prurient interest..."; second, "the work
depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law"; and third,
"the work, taken as a whole, lacks serious literary, artistic,
political or scientific value." The Miller standard remains in
effect today, but no one knows exactly what it means.

Q: Why does the ACLU object to the obscenity exception to the First
Amendment?

A: The perception of obscenity in art is highly subjective. As Justice
Douglas wrote, in his dissent in Miller, "what may be trash to
me may be prized by others." By authorizing our courts to decide what
is morally acceptable, we turn them into censorship boards that impose the
personal viewpoints and tastes of judges and juries on the rest of
society.

Furthermore, formulating a precise definition of obscenity has proven
to be impossible. Justice Potter Stewart summed up the problem with his
famous one-liner: "I know it when I see it." That assurance is
of small comfort to artists, writers, publishers and distributors, who
must navigate the murky waters of obscenity law trying to predict what
judges will think.

The inherent subjectivity of any definition of obscenity has led
to the suppression of constitutionally protected expression. Sometimes
the suppression is direct and well publicized -- for example, the 1990
conviction of a Florida record store owner for selling a certain album of
rap music, and the prosecution, in the same year, of an Ohio museum
director for exhibiting the works of a celebrated photographer. But even
more pervasive is the "chilling effect" that vague standards
have on writers and artists, pressuring them to engage in self-censorship
to avoid running afoul of a legal definition that means different things
to different people.

The First Amendment enshrines the principle that freedom of thought and
expression are essential to a free society. In practice, the First
Amendment's guarantees mean that adults must be free to decide for
themselves, without governmental interference, what to read, write, paint,
draw, photograph, see and hear.

Q: But don't obscene and pornographic works cause anti-social, even
violent behavior?

A: No direct link between exposure to sexually explicit material and
anti-social behavior or sexual violence has ever been scientifically
established. In 1967, President Lyndon B. Johnson appointed a panel of
experts to examine this issue. But after three years of extensive
research, the National Commission on Obscenity and Pornography found no
convincing evidence of a causal connection. Indeed, the commission
concluded that the real problem is not sexual imagery but "the
inability or reluctance of people in our society to be open and direct in
dealing with sexual matters." The commission called for the repeal of
existing obscenity statutes, except those concerning children, and
recommended better sex education, better communication about sexual
matters and more research.

In 1985, President Reagan's Attorney General, Edwin Meese, convened
another commission, stating that "re-examination of the issue of
pornography is long overdue." The Meese Commission, chaired by a
zealous anti-pornography federal prosecutor, held public hearings at which
a parade of witnesses recounted, from behind a screen, tales of sexual
abuse. The commission then declared that it had established a link
between such abuse and pornography and proposed new censorship laws.
Soon afterwards, several prominent scientists whose studies the
Commission's report had cited disassociated themselves from the report,
charging that their research had been misrepresented.

Social scientists believe that, while a troubled upbringing and
alcoholism appear to be strongly linked to sexual violence, it is
virtually impossible to demonstrate that such violence is caused by
pornography. In any case, violent criminals often claim to be inspired by
non-pornographic material. Serial killer Theodore Bundy collected
cheerleader magazines. John Hinckley stalked President Reagan after
seeing the renowned film, "Taxi Driver." And several mass
murderers claimed to have been inspired by passages in the Bible. As
these examples suggest, blaming books or films for the acts of disturbed
individuals is a simplistic approach that could destroy freedom without
deterring crime at all.

Q: Even if the government can't suppress art, surely it shouldn't use
tax monies to fund art that offends!?

A: The Constitution does not require the government to subsidize
artists and private art institutions, so a government decision to end arts
subsidies would not violate the First Amendment (although that decision
would impoverish the nation's cultural life). But as Chief Justice
William Rehnquist has said, the Constitution forbids the government, once
it has established a subsidy program, to "discriminate
invidiously" and "aim at the suppression of dangerous
ideas" in its administration of that program. Government funds pay
for our sidewalks and streets, but the government cannot decide which
ideas and opinions are expressed there. An art subsidy program is like a
government-funded street, library, park, or university: a public forum for
the expression of diverse ideas.

Art is inherently challenging and often provocative. If the
government, fearing controversy, funded only art so bland that it offended
no one, creativity would be stifled.

Q: Why does the ACLU object to movie ratings, music labeling, or other
voluntary rating systems? Don't they give guidance to consumers,
especially parents?

A: "Voluntary" is a misnomer, given that the movie rating and
music labeling systems were established to placate private pressure groups
bent on censorship. As one commentator put it, such systems "amount
to an elegant form of censorship -- elegant because it is censorship made
to look like consumer information."

Real information, such as periodicals that actually reviewed books,
records and films marketed to young people, could be useful to parents.
But rating and labeling systems that are based on vague, simplistic and
overly generalized criteria do not really inform. In 1990 and '91,
numerous state legislators proposed laws to require the labeling, and
banning the sale to minors, of recordings that contain lyrics about sexual
activity, drug or alcohol use, murder or suicide. By that standard, a
host of operas and literary classics -- even the Bible -- might be labeled
"For Adults Only."

Instead of providing useful information, ratings and labels encourage
artists who want to reach the broadest possible audience to censor their
own works in advance to avoid restrictive classifications. By promoting
this self-censorship, rating and labeling systems act as filters between
us and the artist.

Q: But mustn't we protect our children from inappropriate messages and
images, especially graphic sex and violence?

A: Yes, but who decides which lyrics or movies are not suitable for
your children? The government? Self-appointed busybodies? Or do you
decide?

Parents differ about what is appropriate for children; therefore,
individual parents must be free to make decisions regarding their own
children. A majority of the public agrees with that principle: A 1990
Gallup poll showed that 78 percent of Americans believe that parents
should do more to protect their children from obscenity, but 75 percent
did not want any new laws passed to restrict what the public could see or
hear.

Q: Defending artists is fine, but why does the ACLU spend time and
money defending pornographers and sleaze merchants?

A: First of all, the ACLU defends freedom of expression, not the
content of expression. Second, if we grant the government the
power to censor "sleaze," it must also have the power to decide
what "sleaze" is. History reveals that the government tends to
use such power overbroadly to censor controversial material by calling it
"sleaze." Any involvement by the government in deciding which
ideas are fit for public consumption robs you of your constitutional right
to make that decision for yourself.

Today's climate of intolerance harks back to the
"Comstockery" of the late 19th century. Once again, a movement
is afoot to stifle artistic freedom in the name of stamping out
"indecency."

Book banning in the public schools has targeted John Steinbeck's
The Grapes of Wrath, Kurt Vonnegut's Slaughterhouse 5, J.D.
Salinger's Catcher in the Rye, George Orwell's 1984,
Tarzan, Little Red Riding Hood and the American Heritage College
Dictionary. J.R.R. Tolkien's The Hobbit has been accused of
promoting Satanism, and Alice Walker's The Color Purple has been
charged with undermining family values.

Nudity is being edited out of films by cable television stations,
paintings of nudes are being excluded from art exhibits and theatrical
works that include nudity have been banned, or altered, in localities
around the country.

Artists are feeling pressure from government funding agencies to steer
clear of art that deals with issues of gender and sexuality.

Censorship is an infectious disease. Permitting restraints on any
expression sets the stage for attacks on all expression that is
artistically and/or politically controversial. The creative spirit must
be free. When it is not, society suffers.